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Nov. 8 — A lawyer who had a “tumultuous” second job as a volunteer reserve police officer in
Washington, D.C., until he was fired for sending e-mails criticizing and ridiculing
his superiors doesn’t have a triable claim that he was punished for exercising his
First Amendment rights, a federal judge ruled (
Lefande v. D.C.
, D.C. Cir., No. 15-7055, 11/8/16
).

Matthew LeFande is a former D.C. prosecutor who now “specializes in civil rights litigation,
particularly against the District of Columbia and the Metropolitan Police Department,”
according to his
complaint in a 2010 case against another Washington police officer. In that lawsuit, LeFande
sued an officer he’d had a previous romantic relationship with for defamation and
malicious prosecution after the woman accused him of stalking her. He lost the case
but has an appeal pending.

LeFande also sued the Metropolitan Police Department on behalf of two named plaintiffs
and a proposed class of all reservists in 2006. The lawsuit challenged regulations
that deny reservists certain rights, such as collective bargaining.

During the same period, LeFande sent e-mails to his superiors accusing them of “delusions
of adequacy”
and “perpetual incompetence” and that included other “caustic”
and “accusatory language,” Judge David Tatel of the U.S. District Court for the District
of Columbia Circuit wrote in his decision in the present case. He also forwarded the
message to a listserv of co-workers. He was fired just before an oral argument in
the class action, which he ultimately lost.

LeFande alleged that his e-mails were protected by the U.S. Constitution and therefore
his firing was illegal retaliation, but the court disagreed in a Nov. 8 opinion. The
decision highlights some important limitations on the constitutional guarantee of
freedom of speech.

Balancing Test

Under the First Amendment, people who work for the government can’t be punished for
their communications—as long as certain conditions are met. Public workers’ speech
is protected when it is made within the person’s role as a regular citizen and where
the person’s and public’s interest in making and hearing the speech outweighs the
government’s interest in promoting efficiency.

If those conditions are met, a government employer can’t punish a person on the basis
of that particular speech. Government employers that fire a worker who purports to
be a whistle-blower, as LeFande did, have to show they would have fired the person
regardless of whether they made the protected speech.

Additionally, there are stronger governmental interests in regulating the speech of
police officers than other government workers, due to the special degree of trust
and discipline required for police work.

The police department explained in its termination letter that LeFande was being fired
because the “tone, tenor, content and distribution” of his e-mails would diminish
respect for reserve corps officials and undermine morale. The messages also showed
that LeFande was a “disruptive force” and “blatantly insubordinate,” the department
said.

Government’s Rights Win Out

LeFande’s speech comes within the ambit of the First Amendment because police personnel
policy and public safety is an important public matter, Tatel wrote.

Nonetheless, LeFande’s statements had a clear potential to undermine office relations
and could also impair discipline because they “expressly disrespect” his superiors,
Tatel wrote. “More fundamentally, when we consider the ‘manner’
and ‘context’” of the messages, “they read more as personal attacks” on LeFande’s
boss “than as proposals for improving departmental policy,” the court said.

The government’s interest in preventing disruptions and insubordination in its police
force therefore outweigh LeFande’s in making the speech contained in the e-mails and
the public’s interesting in receiving the information, Tatel concluded.

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